Wednesday, May 27, 2009

Rational decision making has met its match

in President Obama's Supreme Court nominee...

...she wrote the opinion in one big environmental case—one the Supreme Court just overturned.

In 2007, Riverkeeper vs. EPA, she argued that the EPA can’t weigh costs and benefits in deciding what the “best technology” is for protecting fish that get sucked into power plants.

Is she against benefits, costs, or subtraction?


  1. I think the issue is a little more complicated than you're presenting. She's arguing that the regulation, as written by Congress, specifies the "benefit" that must be achieved. Within those parameters, the most cost-effective technology can be used. Of course, you can disagree with the regulation in and of itself, but that's a separate issue.

    Here's a quote from the actual opinion(

    "The EPA may permissibly consider cost in two ways: (1) to determine what technology can be 'reasonably borne' by the industry and (2) to engage in cost-effectiveness analysis in determining BTA. Thus, the EPA must first determine what is the most effective technology that may reasonably be borne by the industry. In making this initial determination, the most effective technology must be based not on the average Phase II facility but on the optimally best performing Phase II facilities, see, e.g., Kennecott v. United States EPA, 780 F.2d 445, 448 (4th Cir.1985) ('In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible.'), although, of course, the EPA must still ascertain whether the industry as a whole can reasonably bear the cost of the adoption of the technology, bearing in mind the aspirational and technology-forcing character of the CWA. This technology constitutes the benchmark for performance. Once this determination has been made, the EPA may then consider other factors, including cost-effectiveness, to choose a less expensive technology that achieves essentially the same results as the benchmark. For example, assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish (with all other considerations, like energy production or efficiency, being equal), could appropriately choose the cheaper technology on cost-effectiveness grounds. Cost-benefit analysis, however, is not permitted under the statute because, as noted, Congress has already specified the relationship between cost and benefits in requiring that the technology designated by the EPA be the best available."

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